HUFF, J.: Melvin
Lanham appeals the summary dismissal of his action against Blue Cross and Blue
Shield of South Carolina. In the action, Lanham alleged breach of contract and
bad faith in the cancellation of his health insurance policy. The circuit court
judge granted Blue Cross's motion for summary judgment on the grounds Lanham
knew of his liver condition and misrepresented his health status at the time
he submitted his application or alternatively that Lanham had a long-standing
problem with his liver which materially affected Blue Cross's acceptance of
the risk. We reverse.

FACTS

On February 13, 1986, Melvin Lanham
went to his doctor for an annual physical. The physical exam revealed Lanham's
liver was swollen. Lanham subsequently received a letter indicating a blood
test had revealed a slight elevation in liver function tests. In the letter,
the doctor stated "I do not feel that any further treatment or investigation
is indicated at this point in time. I do think that you need a periodic evaluation
of your liver function studies and would suggest that we obtain a blood test
on you in about six months." On September 11, 1986, Lanham returned for the
follow-up blood test. The second test also indicated an elevated SGOT and SGPT
level. Other values associated with liver function were normal. The doctor advised
him to follow up with periodic blood tests.

On April 26, 1988, Lanham returned
for another annual physical. The doctor's report from that visit states: "The
patient was followed by Dr. Harold Miller for a number of years and has been
told in the past that he has had a slight elevation of his hepatic enzymes.
He underwent extensive studies in reference to this. The exact studies are unknown
by the patient whether he had a hepatitis profile, etc." After more blood tests,
Lanham received a letter from his doctor stating: "Your liver function studies
have markedly improved since last year and almost are back to completely normal.
Your kidney function is normal." The doctor told Lanham he "did not feel that
he needed to have any further studies or tests done at that point in time."

On April 29, 1991, Lanham applied
for health insurance coverage from Blue Cross. As part of his application, he
completed an extensive questionnaire regarding his past medical history. On
the questionnaire, Lanham checked yes beside the question regarding digestive
system problems (including liver problems) and underlined gastritis, but did
not provide additional information regarding his liver.(1)

On July 15, 1991, Blue Cross issued
a policy to Lanham with a rider excluding coverage for a hip problem.

In November of 1991, Lanham had blood
work done in connection with an unrelated application for life insurance. On
November 6, 1991, he went back to his doctor and advised him that based on the
lab work, he had been turned down for life insurance. The doctor repeated the
blood work and discovered one of Lanham's enzymes had increased to a point requiring
further investigation. He referred Lanham to a specialist and suggested Lanham
consider having a liver biopsy.

In December of 1991, the specialist
diagnosed Lanham with hepatitis C. In July of 1992, Blue Cross notified Lanham
it had canceled his health insurance due to alleged fraudulent misrepresentations
in his application. On November 4, 1992, Lanham filed suit asserting breach
of contract and bad faith refusal to pay. Blue Cross answered and counterclaimed
asserting it would not have issued the policy but for misrepresentations in
the application. The suit was dismissed with leave to restore in 1994 and restored
on March 2, 1995.

Blue Cross moved for summary judgment
on January 21, 1997. On January 24, 1997, Lanham requested discovery of various
items including Blue Cross's underwriting guidelines. Blue Cross moved to quash
the discovery request asserting its underwriting standards are protected as
trade secrets. On February 3, 1997, Lanham made a second motion to compel discovery.

During the hearing on Blue Cross's
motion for summary judgment, Blue Cross relied heavily on an unpublished opinion
by this court. Blue Cross also presented an affidavit from an employee who stated
the insurer would not have issued Lanham's policy had it known of Lanham's liver
problems. Lanham argued he had not been allowed adequate discovery and the question
of materiality was a jury issue. Lanham renewed his motion to compel discovery.
Without ruling on Lanham's discovery motion, the court granted summary judgment
in favor of Blue Cross. Lanham's subsequent motion to alter or amend was denied.

LAW/ANALYSIS

On appeal, Lanham argues 1) there
is a genuine issue of fact regarding whether he made a material false statement
on the application, or if false, whether the statement was made with the intent
to deceive, and 2) he did not have the opportunity for adequate discovery prior
to the granting of the motion for summary judgment.

Summary judgment is available when
no genuine issue of material fact exists and the moving party is entitled to
judgment as a matter of law. In ruling on a motion for summary judgment, the
evidence and the inferences drawn from it must be viewed in the light most favorable
to the non-moving party. SeeCafé Associates, Ltd. v. Gerngross,
305 S.C. 6, 406 S.E.2d 162 (1991). See also Rule 56, SCRCP.

"An appellate court reviews the granting
of summary judgment under the same standard applied by the trial court pursuant
to Rule 56, SCRCP." Wells v. City of Lynchburg, 331 S.C. 296, 301, 501
S.E.2d 746, 749 (Ct. App. 1998). Summary judgment is inappropriate "even when
there is no dispute as to the evidentiary facts if there is dispute as to the
conclusion drawn from those facts. All ambiguities, conclusions, and inferences
arising in and from the evidence must be construed most strongly against the
movant."Clyburn v. Sumter Co. Sch. Dist. 17, 311 S.C. 521,
522-523, 429 S.E.2d 862, 863 (Ct. App. 1993) (citations omitted).

The falsity of any statement in the
application for any policy covered by this chapter does not bar the right to
recovery thereunder unless the false statement was made with actual intent to
deceive or unless it materially affected either the acceptance of the risk or
the hazard assumed by the insurer.(2)

As the trial court found, according
to the plain language of the statute, an insurer must prove one of the following
situations to justify withholding payment to an insured: 1) a false statement
made with actual intent to deceive; or 2) a false statement materially
affecting the insurer's acceptance of the risk; or 3) a false statement
materially affecting the hazard assumed by the insurer.

Viewing the evidence, as we are required
to do, in the light most favorable to Lanham, we find a material question of
fact exists as to whether Lanham intended to deceive Blue Cross when he answered
question 17D on the application. Lanham checked yes in answer to question 17D.
This arguably was sufficient. The thoroughness with which Lanham completed the
applications for himself and his family is some evidence Lanham did not intend
to deceive Blue Cross. In fact, Lanham's wife was turned down for insurance
because of the disclosures made on her application. Lanham received a policy
with a rider excluding any coverage for hip-related problems. There is a genuine
issue of fact for a jury as to whether Lanham omitted information about his
liver with the actual intent to deceive Blue Cross.

The trial court found Lanham's answer
on the insurance application was material as a matter of law. We disagree. Blue
Cross submitted an affidavit from Sandra Laney, a Blue Cross underwriting manager,
stating the alleged false statement materially affected Blue Cross's acceptance
of the risk. However, such a statement is not conclusive, but is merely part
of the factual basis used to determine materiality. In this instance, the issue
of materiality is more properly resolved by a jury. The question of materiality
is "for the trier of fact unless the record is such that the trial court must
reach the conclusion that the statement materially affected the acceptance of
the risk." Taylor v. Metropolitan Life Insurance Co., 214 A.2d 109, 112
(N.H. 1965). SeeMeyer v. Blue Cross Blue Shield, 500 N.W.2d 150
(Minn. Ct. App. 1993) (materiality is a fact question based on the objective
facts of the particular case).

There are enough facts in this case
from which a jury could conclude that Lanham made false statements with the
intent to deceive Blue Cross. There are enough facts in this case from which
a jury could conclude that Lanham made false statements that materially affected
Blue Cross's decision to accept the application. Jurors could also decide Lanham
did not intend to deceive Blue Cross or that his statements were not material
to Blue Cross's decision. On this record the determination should belong to
the jury, not the judge. SeeMeyer, 500 N.W.2d at 154.

The lower court and Blue Cross relied
on an unpublished opinion of this court, Bon Secours-St. Francis Xavier Hospital
v. Blue Cross and Blue Shield of South Carolina, Op. No. 95-UP-251, filed
October 2, 1995. However, it should be noted unpublished opinions have no precedential
value. Rule 220(a), SCACR.(3)

Because the lower court did not hear
Lanham's motion to compel, we remand that issue to the trial court for determination.

Have you or any other person listed
on the application in the past ten (10) years had a diagnosis of, advice for,
indication of, symptoms related to, treatment for, or accident or injury related
to any of the following systems, diagnoses, disorders, diseases, conditions,
or symptoms?

2. Other jurisdictions
including California, Louisiana, New Hampshire, Pennsylvania, and Vermont, have
or had identically worded statutes.

3. During oral
argument, Blue Cross argued Rule 220(a), SCACR, does not reference or apply
to the unpublished opinions of this court. However, this court formerly issued
memorandum decisions which were not published. Now, our opinions which are not
printed in the advance sheets are identified as "unpublished" and are given
docket numbers with the designation "UP". See Paula Gail Benson and Deborah
Ann Davis, A Guide to South Carolina Legal Research and Citation 99 (1991).
Rule 220(a) applies to these unpublished opinions.